United States District Court, S.D. West Virginia, Huntington Division
HEATHER ROBERTSON, Individually and as the personal Representative of Jon Robertson, deceased, Plaintiff,
THE CINCINNATI INSURANCE COMPANY, Defendant.
MEMORANDUM OPINION and ORDER
A. Eifert, United States Magistrate Judge
is Plaintiff's Motion for an Order Compelling Discovery.
(ECF No. 41). Defendant has filed a memorandum in opposition
to the motion, and Plaintiff has filed a reply brief. (ECF
Nos. 45, 46, 47, 48). Therefore, the matter is fully briefed,
and oral argument is not necessary to resolve the issues in
dispute. For the reasons that follow, the court
GRANTS, in part, and DENIES, in
part, the motion to compel.
Heather Robertson, alleges that Defendant, The Cincinnati
Insurance Company (“TCIC”), is liable for breach
of insurance contract, violations of the West Virginia Unfair
Trade Practices Act, common law bad faith, and breach of
reasonable expectations related to a life insurance policy
covering the decedent, Jon Robertson. On January 20, 2017,
Plaintiff served TCIC with interrogatories and requests for
the production of documents. TCIC answered the discovery
requests; however, Plaintiff was not satisfied with all of
the responses. The parties exchanged correspondence regarding
the alleged deficiencies and managed to resolve some, but not
all, of their differences. Plaintiff then filed the instant
motion to compel. After the motion was filed, the parties
continued to confer and narrow the issues in dispute.
Currently at issue are TCIC's answers to Interrogatory
No. 16, and Requests for the Production of Documents Nos. 13,
17, 23, 24, 26, and 27.
Interrogatory No. 16 asks TCIC to “identify and
describe the procedure used by Defendant with respect to any
information it obtained from MIB, Inc. with respect to
applicant.” (ECF No. 41-1 at 7). TCIC responded:
“The information obtained from the MIB is reviewed as
part of the underwriting process.” (ECF No. 41-3 at 6).
Plaintiff argues that this response is inadequate, because it
fails to describe the procedure used. (ECF No. 42 at 4).
According to Plaintiff, “it is illogical to thing [sic]
that Cincinnati Life requires its underwriters to obtain
information from MIB, Inc., but that it provides no guidance
on the procedure used to review the information
obtained.” (ECF No. 48 at 4). TCIC contends that the
procedure “is a simple one of which no further
explanation can be made.” (ECF No. 46 at 3).
TCIC's answer to the interrogatory may be correct and
complete as written, if there was any other guidance or
instruction provided by TCIC to its underwriter regarding how
to handle, use, and store information about Jon Robertson
provided by MIB, Inc., Plaintiff is entitled to discover the
nature of that guidance or instruction. Therefore, to the
extent such guidance or instruction was given, TCIC shall
supplement its response in ten (10) days of the date of this
Order and provide that information. If there was no other
guidance or instruction provided, then TCIC shall supplement
its response and indicate so.
Nos. 13 and 17 (financial information)
seeks production of TCIC's financial statements, profit
and loss statements, and federal income tax returns for the
years of 2012 through 2016. Plaintiff alleges that this
information is relevant to her claim for punitive damages.
(ECF No. 42 at 11-12). TCIC objects, arguing that the
requests are premature given that Plaintiff has not
demonstrated a viable claim for punitive damages. (ECF No. 46
at 11). In reply, Plaintiff asserts that she has provided
TCIC with multiple affidavits, which establish that TCIC
failed to conduct a fair evaluation of her claim. (ECF No. 48
at 5-6). Therefore, she believes she has met her burden and,
thus, is entitled to TCIC's financial information.
Court has previously held that a plaintiff must “make a
prima facie claim for punitive damages before being entitled
to discovery of a defendant's financial records. To make
a prima facie claim for punitive damages ... a plaintiff must
produce some factual evidence in support of her claim.”
Robinson v. Quicken Loans Inc., No. CIV.A.
3:12-0981, 2013 WL 1704839, at *4 (S.D. W.Va. Apr. 19, 2013).
Surviving a motion for summary judgment, or filing a motion
to compel “that includes sufficient supporting evidence
(i.e., affidavits, documentary evidence) to
demonstrate a viable claim for punitive damages” are
two avenues by which Plaintiff may make such a showing in
this case. Id. at n. 3. Plaintiff has not survived a
summary judgment motion on punitive damages, because no such
motion has been filed and is not due to be filed until
October. Moreover, Plaintiff supplied no evidence with her
motion to compel to demonstrate to the court a viable
punitive damages claim. Accordingly, as Plaintiff has not
made a sufficient factual showing to justify an order
compelling production of TCIC's financial records, her
motion to compel Requests for Production of Documents Nos. 13
and 17 is DENIED as premature.
Nos. 23, 24, 26 and 27 (insurance department and bad faith
complaints; audits and market conduct
requests (1) all insurance department complaints against TCIC
within the last 10 years; (2) a list of all bad faith
complaints filed against TCIC in the last 10 years; (3) all
documents relating to reviews and audits of TCIC's claims
handling in the last five years; and (4) all documents
relating to market conduct examinations made in the last five
years. TCIC indicates that it provided Plaintiff with
responses pertaining to the State of West Virginia, but
objects to further production on the basis that the requests
are not geographically limited to West Virginia and,
consequently, are overly broad and burdensome. Plaintiff
asserts, to the contrary, that TCIC likely has all of this
information electronically stored, and the requested reports
can be generated “with a few keystrokes.” (ECF
No. 48 at 8-9).
outset, the undersigned notes that TCIC has not provided any
evidentiary support for its claim of burdensomeness.
Conclusory and unsubstantiated allegations are simply
insufficient to support an objection based on the grounds of
annoyance, burdensomeness, oppression, or expense.
Convertino v. United States Department of Justice,
565 F.Supp.2d 10, 14 (D.D.C. 2008) (the court will only
consider an unduly burdensome objection when the objecting
party demonstrates how discovery is overly broad, burdensome,
and oppressive by submitting affidavits or other evidence
revealing the nature of the burden); Cory v. Aztec Steel
Building, Inc., 225 F.R.D. 667, 672 (D. Kan. 2005) (the
party opposing discovery on the ground of burdensomeness must
submit detailed facts regarding the anticipated time and
expense involved in responding to the discovery which
justifies the objection); Bank of Mongolia v. M & P
Global Financial Services, Inc., 258 F.R.D. 514, 519
(S.D. Fla. 2009) (“A party objecting on these grounds
must explain the specific and particular way in which a
request is vague, overly broad, or unduly burdensome. In
addition, claims of undue burden should be supported by a
statement (generally an affidavit) with specific information
demonstrating how the request is overly burdensome”).
the undersigned agrees with TCIC regarding the overly broad
nature of three of the requests. Rule 26(b)(1) outlines the
scope of discovery:
[U]nless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed